Court of Appeal for Ontario

Citation: St. Jean v. Cheung, 2009 ONCA 9 Date: 2009-01-07 Docket: C47654

Before: Rosenberg, Borins and Gillese JJ.A.

Between:

J. Robert St. Jean, a party under disability by his litigation guardian, Jennifer L. St. Jean, Jennifer L. St. Jean, personally, and Nicole St. Jean Plaintiffs (Appellants)

and

Dr. Wai Ming Cheung, Dr. John Murray, Dr. Rosalind Curtis, Dr. John Doe, North York General Hospital and Nurse Jane Doe Defendants (Respondents)

Counsel: Christine Fotopoulos and Robin Squires, for the appellants Sarit E. Batner and Kenneth Morris, for the respondents

Heard: September 8, 2008

On appeal from the order of Justice John C. Murray of the Superior Court of Justice dated Tuesday, December 18, 2007, reported at (2007), 2007 8025 (ON SC), 85 O.R. (3d) 275, and (2007), 2007 38579 (ON SC), 87 O.R. (3d) 711.

COSTS ENDORSEMENT

[1] In a decision dated December 3, 2008, this court allowed the appeal and awarded costs of the appeal and of the lower court motion to the appellants in the amounts of $30,000 and $40,000, respectively. By letter dated December 9, 2008, the respondents asked to be permitted to make submissions on the costs award saying that the panel had not received submissions from counsel as to the appropriateness of costs of the lower court proceeding.

[2] We begin by noting that, in accordance with the court’s practice direction, the time to make submissions respecting costs is at the time of the hearing: Practice Direction Concerning Civil Appeals in the Court of Appeal (October 7, 2003). Indeed, in the present matter, counsel provided costs outlines to the panel and addressed certain aspects of that matter. For example, respondents’ counsel took issue with the appellants’ entitlement to costs of the lower court motions on the basis that the appellants had not appealed that award. Further, respondents’ counsel also made submissions on the quantum of costs sought by the appellants, as it was her view that the amount of time spent by counsel for the appellants was excessive. Counsel for the appellants contended that costs should follow the event and, if they were successful, asked to be awarded costs of the proceedings below. Nonetheless, to accommodate the contention of respondents’ counsel that she had not been heard on the matter, the panel accepted further submissions.

[3] In respect of the costs awarded for the proceedings below, contrary to the submission of the respondents, we do not view the motion judge as refusing to award costs to any party solely due to a dearth of law on the subject or because of the novelty of the matters in issue. In our view, despite the respondents’ success on the motion, the motion judge chose to exercise his discretion and make no award of costs after a consideration of all the circumstances, including:

(a) the impecuniosity of the appellants;

(b) the tragic circumstances of the case; and

(c) the novelty and importance of the issues raised on the motion.

[4] In general, costs follow the event. The appellants were successful on the appeal, and, as a result, also on the lower court motion. The general principle when an appeal is allowed is that the order for costs below is set aside and the costs below and of the appeal are awarded to the successful appellant: see Hunt v. TD Securities Inc. (2003), 2003 48369 (ON CA), 43 C.P.C. (5th) 211 (C.A.), at para. 2. Further, where the substantive disposition is different from that of the decision under appeal, leave to appeal costs is not necessary: see Dines v. Harvey A. Helliwell Investments Ltd., [1992] O.J. No. 2107 (C.A.).

[5] Despite the novelty of the issues that were decided, we see no reason to depart from the general principle. As the appeal was successful, the circumstances and considerations have changed. The appellants were entirely successful on the appeal with the result that they are now permitted to continue their actions against the new defendants. As such, they are entitled to their costs both of the motion below and of the appeal.

[6] We wish to comment on an additional matter. The request to make additional submissions focussed on costs of the motion below. It would have been appropriate and preferable had counsels’ submissions been limited to that matter.

[7] Accordingly, the decision to award the appellants costs of the motion and the appeal fixed at $40,000 and $30,000, respectively, is affirmed.

“M. Rosenberg J.A.”

“S. Borins J.A.”

“E.E. Gillese J.A.”